People v. Mejia CA5

Filed 9/30/16 P. v. Mejia CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F070854 Plaintiff and Respondent, (Super. Ct. No. F14908161) v.

JOSE MEJIA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge. Jake Stebner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Detjen, Acting P.J., Franson, J. and McCabe, J.† † Judge of the Merced Superior Court assigned by the Chief Justice pursuant to article IV, section 6 of the California Constitution.

A jury convicted appellant Jose Mejia of assault with a deadly weapon (count 1/Pen. Code, § 245, subd. (a)(1))1 and making criminal threats (count 2/§ 422) and found true a personal use of a deadly weapon enhancement (§ 12022, subd. (b)(1)). On appeal, Mejia contends the court violated section 654’s proscription against multiple punishment when it sentenced him. We find merit to this contention and modify the judgment accordingly. FACTS The evidence at trial established that Rosaria Avalos was in a romantic relationship with Mejia for several years. On the morning of August 29, 2014, Mejia returned to Avalos’s house, having left the previous night after they argued about Mejia seeing other women. While the couple was outside barbecuing, Mejia became upset because there were no tortillas. Mejia then raised a 12-inch butcher knife over his head with the tip pointed towards Avalos, as if to stab her, and he threatened to kill her. Avalos stepped back, told him she was going to call the police, and called 911. Mejia replied that he did not care and that the police were not going to do anything. Mejia then went and sat down and waited for the police to arrive. Fresno Police Officer Marcus Gray arrived on the scene and found Mejia in an alley sitting on a cushion that covered a knife with the handle sticking out. Meanwhile, Avalos was interviewed by a Spanish-speaking officer. Avalos was visibly upset while speaking with the officer as she related the above details to him and told him she was afraid of Mejia. On January 7, 2015, the court sentenced Mejia to the aggravated prison term of three years on his assault with a deadly weapon conviction and a concurrent, aggregate